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May 25, 2019

NY Lawmakers Approve Legislation to Curb Gravity Knife Prosecutions

By Michael H. Joseph

The New York legislation is intended to eliminate the option for members of law enforcement to charge someone for simply carrying what could be considered a gravity knife under current state law. Our New York criminal defense lawyers have defended numerous cases where people are prosecuted for carrying gravity knives. Very often the local police departments don’t understand what a gravity knife is and arrest people for carrying knives that are not really gravity knives. The law is outdated because it is often erroneously enforced against people who use knives in a number of trades, including electricians, maintenance workers and other trades that need to open and close knives frequently.

The future of gravity knives in New York state will now be in the hands of Gov. Andrew Cuomo after state lawmakers gave final approval to a bill striking the weapon from a section of the state’s penal code.

On May 13, 2019, the bill was approved unanimously by the state Senate, where it’s sponsored by Sen. Diane Savino, D-Staten Island. Prosecutors and other members of law enforcement have been accused of using the law to target low-income people of color with jobs that require them to carry such a knife, which is identified by a so-called ‘flick test.’ That’s when police flick their wrist while holding the knife to see if it opens without additional effort. Savino said that the test is subject to abuse. “You can walk into any hardware store, you can buy one of these tools, but it is illegal to walk out of the door with it,” Savino said. “It makes absolutely no sense.” Also whether someone can open a knife with a flick of the wrist is subjective because techniques can be used to utilize centrifugal force to over come the knive’s locking mechanism. This allows for subjective prosecution since it turns knives that are not designed to open with gravity into the technical definition of gravity knives.

The bill to decriminalize gravity knives has already passed the Assembly, and would remove gravity knives from sections of the state penal law that can be used to charge someone with possessing certain weapons. That way, prosecutors can’t charge someone with carrying something that may meet the definition of a gravity knife under New York state law. That definition was labeled by a federal judge as unconstitutionally vague in a decision nearly two months ago. Senior Judge Paul Crotty for the Southern District said the statute presented a “high risk of arbitrary enforcement,” partly because of the flick test Savino mentioned. “Criminal culpability here is tied to a vague definition and functional test that could have outcomes depending on who is performing it and when,” Crotty wrote.

Assemblyman Dan Quart, D-Manhattan, sponsors the bill in the Assembly. He said their legislation compliments Crotty’s decision because, rather than focusing on the definition of a gravity knife, they’re trying to remove the option for members of law enforcement to charge someone for possessing the object. That means there won’t be any more flick tests. The recent decision by Judge Crotty suggests the approach we took was the right one because [he] didn’t focus on a definition, he focused on the flick test, but he also focused on the ambiguity that any reasonable person walking down the street could not know whether he or she was carrying a lawful or unlawful work tool or not. So, by taking the two words out of the statute, we solve the problem Judge Crotty was concerned with.

The bill now heads to Cuomo, who vetoed a previous version of the legislation that attempted to address the matter in a different way. That bill, also sponsored by Quart and Savino, would have changed the definition of a gravity knife in state law to avoid more prosecutions. Cuomo wrote at the time that the new definition would be more confusing for law enforcement, which could be counterproductive to the goal of the bill.  Any person who goes into a store and purchases the product can be subsequently arrested and prosecuted for mere possession, this construct is absurd and must be addressed, but this bill unfortunately does not address it.

Savino said she expects Cuomo to sign the legislation, particularly because Crotty’s decision affirmed what they’ve been arguing with the bill: that the current statute is not lawful and must be changed. Actual gravity knives were developed and used during World War II by German forces to cut themselves loose from parachutes after landing. Those aren’t the same weapons as today’s knives, which are commonly used by people in several industries, like construction or even theater, Quart said. Savino said the statute has had long-felt consequences for people who didn’t know they could spend time in jail for simply owning a tool for work.

A spokesman for Cuomo said his office is reviewing the legislation but has not yet taken a position on the bill. Our White Plains Criminal defense lawyers know that it is a maxim of criminal law that the activity which is prohibited must not be vague, but must be sufficiently clear that a reasonable person can tell what conduct violates the law.

 

 

 
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